## Facts

- Thriftway Marketing Corporation operated convenience stores in and around the Navajo Nation, including a store managed by David DeVaney.
- A newspaper article attributed to DeVaney criticized Thriftway’s treatment of Navajo communities, its gasoline pricing on the reservation, its manager-termination practices, and its cultural insensitivity.
- Thriftway sued DeVaney for defamation and intentional interference with business relations, alleging his statements caused negotiations to sell certain stores to fail.
- During discovery, the court ordered Thriftway to produce materials concerning personnel practices and gasoline pricing.
- After the discovery order, Thriftway voluntarily dismissed its suit with prejudice.
- DeVaney then sued Thriftway for malicious prosecution and abuse of process, alleging the earlier lawsuit was intended to silence and punish him for speaking to the press and that it damaged his ability to work in his chosen occupation.

## Issues

1. Whether abuse of process requires an improper act beyond filing a complaint, or whether filing itself can satisfy the improper-act requirement when done for an improper purpose.
2. Whether malicious prosecution requires “special injury” beyond ordinary litigation harms and, if so, whether inability to work in one’s chosen occupation qualifies.
3. Whether New Mexico should restructure the two torts to clarify their elements and reduce doctrinal overlap.

## Decision

- The New Mexico Supreme Court reversed summary judgment for Thriftway and remanded.
- The court restated malicious prosecution and abuse of process as a single tort: malicious abuse of process.
- The court abolished any requirement that a plaintiff prove “special injury.”
- The court held that filing a complaint can constitute the actionable misuse of process when pursued without probable cause and with a primary, illegitimate motive.
- The court concluded that genuine disputes of material fact existed under the clarified standard, making summary judgment improper.

## Legal Principles

- New Mexico recognizes a unified tort of malicious abuse of process, replacing separate malicious prosecution and abuse of process claims.
- Elements require: (1) use of process in a judicial proceeding; (2) a primary motive to accomplish an illegitimate end; (3) lack of probable cause; (4) a use of process not proper in the regular prosecution of the claim; and (5) damages.
- A plaintiff need not show “special injury”; compensable harm may include ordinary but substantial consequences of wrongful litigation if the other elements are met.
- The “improper act” may be the filing of the complaint itself when the lawsuit is used as a tactical device for a collateral, illegitimate purpose and is not supported by probable cause.
- Lack of probable cause and improper motive operate as key limits to avoid deterring legitimate access to courts.

## Conclusion

The court consolidated malicious prosecution and abuse of process into malicious abuse of process, eliminated the special-injury barrier, and ruled that initiating litigation can itself be an actionable misuse of process when brought without probable cause for an illegitimate objective; factual disputes required remand for further proceedings.


DeVaney v. Thriftway Mktg. Corp., 124 N.M. 512, 953 P.2d 277 (N.M. 1997)